The following argument preview is by Lauren Popper Ellis, a student at Harvard Law School.
First Amendment speech issues will surround the Court tomorrow during argument in Davenport v. WEA and Washington v. WEA , as it considers the constitutionality of Section 760 of Washington State’s Fair Campaign Practices Act, which requires unions to obtain affirmative authorization from nonmembers before using any part of their contributed “shop fees†for political activities. This pair of cases asks whether such an “opt-in†requirement, arguably designed in part to protect the First Amendment rights of nonmembers, instead unconstitutionally infringes on the First Amendment rights of labor unions.
Washington Attorney General Robert M. McKenna will argue on behalf of the petitioners. John M. West of Washington, D.C.’s Bredhoff & Kaiser, P.L.L.C. will argue on behalf of the respondent. Solicitor General Paul D. Clement will argue for the United States in support of the petitioners.
The Washington Education Association (“WEAâ€) is a labor organization whose local affiliates represent approximately 70,000 teachers, professors, and other educational employees working in Washington’s public schools, community colleges, and universities. Just under five percent of WEA-represented employees are not members of the union, which collects an annual agency “shop fee†from them that is equivalent to the union dues it collects from members. To protect nonmembers’ First Amendment rights (in compliance with the Supreme Court’s decision in Chicago Teachers Union v. Hudson), each year the WEA holds the shop fees in escrow and issues “Hudson packets†that permit nonmembers to request a refund of the portion of their fee that funds activities not “germane†to collective bargaining. If nonmembers do not request a refund within thirty days of receiving the packets, the WEA adds the shop fees to its general treasury.
In 2000, the state brought suit in state court against the WEA alleging violations of § 760 over five years. Soon after Washington initiated its suit, several nonmember school teachers brought a class action lawsuit against the WEA to recover the portion of their shop fees they claimed the WEA collected from them and used for political activities in violation of § 760. In a consolidated hearing on an interlocutory appeal, the Supreme Court of Washington found that § 760 imposed an unconstitutional burden on the First Amendment rights of labor unions and affirmed the Washington Court of Appeal’s dismissal of both suits. The Supreme Court granted certiorari in the consolidated cases to determine the constitutionality of an affirmative-authorization (or “opt-inâ€) requirement for union use of shop fees for political purposes.
The Washington Education Ass’n cases arguably arise from the clash of two First Amendment interests, both of which have received past protection from the Court. On the one hand, since Abood v. Detroit Bd. of Education, the Court has recognized that forcing nonmembers to fund union political activities may infringe on their First Amendment rights. Lenert v. Ferris Faculty Ass’n clarified that, to protect these interests, nonmembers can only be required to pay for a proportionate share of union expenses “germane†to collective bargaining, and Chicago Teachers Union v. Hudson outlined procedures required to implement these protections. On the other hand, the Court’s recent decisions in campaign finance cases have provided strong protection to the First Amendment rights of corporations and other organizations to make political expenditures.
Arguing in support of the statute, Washington and the teacher petitioners argue that § 760 does not burden the union’s First Amendment rights and instead provides protection for the First Amendment rights of nonmember employees. First, they argue that the WEA has only a state statutory right to collect agency shop fees, and therefore no First Amendment right to use such fees for political purposes. To support this argument, they note that states may prohibit the use of union shop fees for ideological purposes or prohibit such fees altogether. Without a First Amendment right of the union at issue, they argue, § 760 is easily justified as rationally furthering a state interest in ensuring that those who make political contributions actually support the cause at issue. Petitioners construe Abood, Lenert, and Hudson as creating a constitutional floor, not a ceiling, on the requirements that may be imposed on the use of union shop fees. By requiring the additional step of affirmative authorization, § 760 merely provides permissible extra protection against nonmembers’ compelled speech, relieving them of the burden of annually voicing their dissent from the union through the Hudson-packet process.
In contrast, the WEA casts § 760 as an unconstitutional infringement on its First Amendment rights to political expression. Because other provisions of Washington law allow it to collect agency shop fees, the WEA argues that § 760 restricts “its right to use funds lawfully in its possession for political speech.†Because § 760 therefore imposes a content-based restriction only on its use of funds for political speech, the WEA argues that the law should be subject to strict scrutiny, following Supreme Court campaign finance decisions (such as Austin v. Michigan Chamber of Commerce and FEC v. Massachusetts Citizens for Life) that evaluated restrictions on corporate political expenditures. The WEA then argues that § 760 fails strict scrutiny because neither of the two asserted government interests – protecting the integrity of elections and providing additional First Amendment protection to nonmembers – offer compelling justifications to which § 760 is narrowly tailored.
Appearing as an amicus on behalf of petitioners, the United States argues that the Washington statute “struck a reasonable balance between the two competing government interests†in permitting agency shop arrangements and in protecting the First Amendment rights of workers. The United States emphasizes that § 760 does not impose any limits on the content, or even the time, place, or manner of the WEA’s speech, nor does it burden the ability of the WEA or its members to freely associate or even impose an administrative burden. Instead, § 760 evens outs some of the “unique advantages†of shop fee arrangements that allow the benefits of nonmember inertia to accrue to unions. Finally, the United States argues that the Federal Campaign Finance Act, which requires unions and corporations to establish separate voluntary-contribution funds for political expenditures, arguably imposes a much more burdensome “opt-in†scheme than § 760. This scheme has survived repeated challenges at the Court, the United States argues, implying that § 760 should be upheld here.
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